November 19, 2008

Looking for a quick treat to share here this evening, we knocked on Robert Ambrogi’s Legal Blog Watch door and he dropped the delicious “Costumed Jurors No Reason for Reversal” (Nov. 19, 2008) into our Beggar’s Bag. It’s about the case of Zabin v. Picciotto, which was handed down yesterday by the Massachusetts Court of Appeals, and was also discussed at The Docket. Bob explains:

“As the complicated civil trial in Massachusetts Superior Court dragged on into late October, the jurors asked the judge if he would allow them to wear costumes on Halloween. After consulting with counsel for all parties and hearing no objection, the judge allowed their request. On appeal, the defendants argued that the presence of jurors in costumes turned the trial into a circus and denied them due process.”

Reviewing the trial decision by Judge Mitchell J. Sikora., who now sits on the Appeals Court, his colleagues agreed with the defendants that “With or without the consent of counsel to the parties, it is regrettable that the trial judge agreed to the jurors’ request. The introduction of Halloween costumes cannot but have detracted from the seriousness and gravity of formal court proceedings.” However,

“However, as to the defendants’ claim of a due process violation, the judge did not merely accommodate the jurors’ request; he consulted with counsel for all parties before doing so, and all counsel agreed. The issue is waived.”

There was even more wackiness at that trial. Per Ambrogi:

“At one point, plaintiffs’ counsel handed out candy to the costumed jurors. Later, a proposed ‘cast list’ was circulated for a Hollywood movie version of the trial. Neither of these provided grounds for reversal, the Appeals Court said. ‘The record reveals no objection to counsel to any party handing out candy to the jurors or any indication that the ‘cast list’ was circulated to the jury’.”

The appeals court also decided that the failure to have the American flag hanging in the courtroom was not grounds for a mistrial.

A big lesson, counselors: Don’t forget to object, and don’t agree too readily just to get along better with His Honor.

Clearly, Judge Sikora — who probably never liked being the only guy in the courtroom in a costume — presided over a rather odd trial. In his defense, he might have felt a bit nauseous as the proceedings dragged on (the trial itself lasted 63 days), and he realized he’d still have a pile of motions to contend with once the verdict was rendered.

The case has been around for almost a decade, and the resulting opinion by the Massachusetts high court is an indigestible trick. Just skimming it gave me heartburn. If you have a strong stomach, or just want to be dissuaded from ever going to law school, the f/k/a Gang suggest you try to read the entire opinion in Zabin v. Picciotto (Mass. Ct. of Appeals, Dkt. 07-P-842, decided Nov. 18, 2008).

. . . Naturally, we’re all waiting to see what jury expert Anne Reed has to say about all this at her Deliberations weblog. . . .

That was Anne Skove! I’m pretty sure she dresses as me for Halloween. But I’m about to put up the week’s links on my own blog, including links to this post and my own growing library of posts about jurors who dress up.

David–I tried to e-mail you on the home page of your site but am unsure if you received it. There is an issue about the possible “optimizing” of a section of blog that I would like to discuss with you. Can you acknowledge to my e-mail: mausert@mac.com?
Kurt Mausert

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